American University Washington College of Law Fellow Macarena Sáez Plays a Key Role in Landmark Decision by the Inter-American Court of Human Rights

Last week the Inter-American Court of Human Rights decided the first case on sexual orientation in Latin America in the matter of Karen Atala v. Chile — in which American University Washington College of Law Fellow Macarena Sáez played a key role.

Macarena Sáez teaches in the areas of comparative law and comparative family law at American University Washington College of Law. She, along with two co-counsel from Chile, represented Judge Karen Atala after the Chilean Supreme Court awarded custody of her three daughters to her ex-husband because Atala was living with her same-sex partner.

The Inter-American Court on Human Rights ruled that the Supreme Court’s holding in Atala violated the American Convention on Human Rights.

“This has been a long battle that has finally come to a successful end with a decision that declares sexual orientation a condition protected by the American Convention of Human Rights,” said Sáez. “The decision also declares that all individuals, regardless of sexual orientation, enjoy the right to family.”

(Photo: Sáez [front row, center] and the legal team with Judge Atala after arguing the Case before the Inter-American Court)

Sáez took on the case pro bono as part of her work with Public Liberties, an association of Chilean attorneys, along with Chilean non-governmental organization, Humanas and Diego Portales Law School. She argued the case before the Inter-American Commission and the Inter-American Court of Human Rights.

In 2003, a family law court awarded provisional custody to the father of Atala Riffo’s three daughters, saying that because she was living openly as a lesbian and co-habiting with her partner and her daughters, she was “disturbing … the normalcy of the family routine, privileging her interests and personal well-being above her daughters’ emotional wellbeing and appropriate socialization process.”

Although the lower court’s final decision and subsequent appeal favored Ms. Atala, the matter reached the Chilean Supreme Court, which ruled that the household’s lack of a male and his replacement by a woman created a risk for the children and an environment too dissimilar from that of their peers, which would cause isolation and discrimination.

The Inter-American Court of Human Rights, in ruling that the Chilean Supreme Court’s holding violated the American Convention on Human Rights, also observed that although the “best interest of the child” is a legitimate aim, merely referencing this standard without concrete proof of the risks or harms that could be caused by the sexual orientation of the children’s mother could not serve as a suitable means of restricting a protected right.

Chile’s Justice Minister Teodoro Ribera told The New York Times that Chile would respect the ruling.

“This decision is relevant for all of Latin America and a wonderful step towards equality in the region,” Sáez said. “I’m grateful of the support of Dean Grossman and American University Washington College of Lawduring this long process.”